Jun 17 2021

DHS still evades review of no-fly orders

Two recent court cases, and follow-up articles and interviews with the plaintiffs and their lawyers, show how the highest priority for the U.S. government with respect to no-fly orders continues to be preventing judicial review of these government decisions, not preventing terrorism.

When an airline requests permission to allow an individual to board a flight, and the U.S. Department of Homeland Security (DHS) declines to give permission, that “Boarding Pass Printing Result” (BPPR) message is communicated only to the airline,  not the would-be traveler. Even the airline is not told the basis, if any, for the negative BPPR message. (The default is “No”, in the absence of affirmative, individualized government permission-to-board.)

Again and again and again, when people have challenged these no-fly orders in U.S. courts, the government has chosen not to disclose or defend the basis for its decisions that these people constitute a threat to aviation sufficient to justify restricting their right to travel.

Instead, the government has told the plaintiffs that they have been (although perhaps only temporarily) removed from “the no-fly list” (although with no assurance that they won’t again be prevented from traveling in the future), and then gotten their complaints dismissed in court as “moot”. Only rarely has it been possible to pursue these cases.

A special law restricting the jurisdiction of the Federal courts over “orders” of the Transportation Security Administration (TSA), 49 U.S.C. § 46110, has also been used to avoid fact-finding as to the basis, if any, for these orders. In our opinion this law is clearly unconstitutional. But the Constitutionality of this law has not yet been directly ruled on, and it has been the subject of little Congressional scrutiny.

If the government really thought these people were dangerous, it should have gone to court sooner to obtain injunctions or restraining orders restricting their freedom of movement. If challenged, it should have defended its actions before Federal judges in adversarial, evidence-based fact-finding proceedings.

The government has chosen to do neither, and has consistently responded to no-fly lawsuits by taking almost everyone with the means and will to pursue extended litigation off the not-fly list. This reflects the reality that the DHS sees judicial oversight of its actions, not terrorism, as the greater threat to its standard operating procedures. The top DHS priority is to be able to continue its practice of extrajudicial secret decision-making — disconnected from facts and based instead on fantasies of “pre-crime” predictive ability — about who is, and who is not, allowed to exercise their Constitutional rights.

The stories of Ahmad Chebli and Ashraf Maniar illustrate how this plays out in real life —  and how it wrecks real people’s lives and livelihoods.

Mr. Chebli is a Lebanese-American born in Chicago and now living in Michigan.  Mr. Maniar is a Pakistani-American born and raised in California. What they have in common is that  both are native-born U.S. citizens,  both are Muslims, both were “nominated” for the no-fly list by the FBI as a tactic to pressure them into becoming FBI informers and spies on their communities and co-religionists, both said “No” to the FBI, both were put on the no-fly list to punish them and to extort their collaboration with the FBI — and both eventually took the government to court for violating their rights.

As the story would eventually be told in his complaint in Federal court, Mr. Chebli was in Lebanon when he was put on the U.S. government’s air-travel blacklist. After he had been stranded overseas for a month, ACLU lawyers negotiated a “one-time waiver” of his no-fly status that allowed him to come home. But airlines were denied permission to allow him to board subsequent international and domestic flights.

Mr. Chebli submitted a “redress” request In 2018 through the DHS TRIP program, which is essentially a “request for reconsideration” acted on in secret by the same agencies that made the initial no-fly decision.

In April 2021, having received no response to his TRIP request, Mr. Chebli filed his lawsuit.

You can listen to a podcast interview here about this case and related issues with one of his ACLU lawyers, Hina Shamsi. Mr. Chebli’s complaint included two particularly meritorious and novel causes of action, along with others that have  been raised in other cases:

  1. Mr. Chebli challenged the no-fly “criteria” (actually a combination of automated algorithmic rules and essentially arbitrary secret human decisions) as unconstitutionally vague because it is impossible for anyone to know what conduct will result in their being prevented from exercising their right to travel by air. So far as we know, no court has ruled on a void-for-vagueness challenge to a no-fly order.
  2. Mr. Chebli brought a claim that the government’ action in preventing him from flying violated the Religious Freedom Restoration Act by unnecessarily burdening his ability to fulfill his religious obligation to travel to Saudi Arabia to perform the Hajj. So far as we know, this too is an issue of first impression in a no-fly case.

Just ten days after Mr. Chebli filed his complaint in Federal court, the government responded by acting on his previously-ignored three-year-old TRIP request. The DHS notified Mr. Chebli that his name had “been removed from the No Fly List, and will not be placed back on the No Fly List based on currently available information.”

Mr. Chebli’s case was then dismissed, “voluntarily” but presumably as moot.

The deficiency of this belated administrative action and dismissal of the lawsuit as “redress” for a no-fly order is made clear by what has happened to Mr. Maniar over the same time period.

Mr. Maniar filed a lawsuit challenging the no-fly order directing airlines not to allow him to board in 2018, the same year Mr. Chebli submitted his TRIP request. Without explaining or defending its no-fly order, the government responded to Mr. Maniar’s complaint by arguing that Mr. Maniar had no cause of action providing a basis for a lawsuit or, if he did, that the court had no jurisdiction to hear it.

In April 2020, Mr. Maniar won a preliminary ruling allowing the case to proceed. Faced with the possibility of having to disclose and/or defend what it had done and why, the government quickly took Mr. Maniar off the no-fly list. His case was, as a result, dismissed (like Mr. Chebli’s case, “voluntarily” but presumably as moot) in August 2020.

But Mr. Maniar’s troubles were far from over. Indeed, the worst of the consequences of the U.S. government’s blacklisting of Mr. Maniar occurred after the U.S. had supposedly taken him off that blacklist, but also after the U.S. had informed airlines and “allies” around the world of Mr. Maniar’s pariah status in the eyes of the U.S. government. The intent of the U.S. government was for its “partners” to act on that stigmatizing notice, as some later did.

As soon as he thought that his name had been cleared and he was free to exercise his right to fly, Mr. Maniar booked flights to visit family and friends he hadn’t been able to see while he was on the no-fly list. He left for Pakistan a week after he got the letter telling him that his name had been “cleared” with the U.S. government.

Mr. Maniar made it from the U.S. to Pakistan without incident. But on his arrival in Karachi, the customs and immigration inspector at the airport directed him to two waiting agents from Inter-Services Intelligence (ISI), the Pakistani counterpart and sometimes ally of the CIA. They escorted him to a back room, handcuffed him in a chair, put an opaque hood over his head, and demanded that he tell them everything he knew about terrorists. After a few hours, he was taken away in a van, still hooded, to an unknown location where the interrogations continued. Since he knew nothing non-public about terrorism and couldn’t tell his captors what they wanted, he expected never to see his family again.

After four days in detention and under intermittent interrogation, much of it handcuffed and with a black bag over his head, he was released. To avoid further problems in Pakistan, he was advised by his ISI captors that he should leave Pakistan, return to the U.S. on the next available flights, and sort out whatever issues the U.S. government had with him — as he thought he had already done when he got his “You are not on the no-fly list” letter.

But there are many gradations of stigmatization, and “not on the no-fly list” does not mean “not on any U.S. government blacklist disseminated to third parties.” Adverse consequences imposed by third parties are not side effects but the intended consequence of the U.S. government’s tagging of individuals as “suspected terrorists”.

Needless to say, this experience continues to exert a chilling effect on Mr. Maniar’s willingness to exercise his right to travel, whether domestically or internationally.

What should be done to keep others from suffering the same fate as Messrs. Chebli and Maniar?

The legislative and regulatory agenda for protection of the right to travel we submitted to the newly-elected  Obama Administration in 2008 remains unimplemented and a good blueprint for the Biden Administration today, as does our checklist of ideas for what to do about the TSA and its violations of travelers’ rights.

With respect to no-fly orders in particular, travel in general, and travel by common carrier, need to be recognized as rights. No-fly orders should be issued only on the basis of publicly disclosed, clearly defined criteria, and in accordance with procedures satisfying the requirements of due process.

We already have those procedures, and they could and should be used. Courts can, and do, impose conditions of release on duly-arrested criminal suspects pending trial, and injunctions or restraining orders against those proven to constitute a specific threat (most often in cases of threats of domestic violence, which kills far more Americans than terrorism). Those court orders can, and routinely do, include restrictions on movement and travel. There are also well-developed procedures and case law governing arrests, including warrantless arrests, of those posing imminent threats of violence.

The U.S. government has never, so far as we know, petitioned a court to issue a no-fly injunction or restraining order. The U.S. government has ignored existing legal principles and procedures for no-fly orders in favor of secret, extrajudicial, effectively unreviewable, and in our opinion clearly unconstitutional administrative no-fly decision making.

Congress and/or the courts need to put a stop to this, and  bring the no-fly system back within the rules of law and the Constitution.

Given the difficulties individuals whose rights have been violated by no-fly orders have faced in court, three changes should be considered by Congress as first steps:

  1. 49 U.S.C. § 46110, which precludes meaningful judicial review of TSA decisions including no-fly orders (nominal responsibility for which is assigned to the TSA even when “nominations” to the no-fly list are made  by other agencies), should be repealed.
  2. Congress should enact an explicit statutory requirement (which should already be clear, but apparently isn’t), that “No person paying the fare and complying with the terms specified in the tariff of a common carrier shall be denied transportation by that carrier except on the basis of an order from a court of competent jurisdiction.”
  3. Congress should create an explicit private cause of action for violations by a common carrier or by or on behalf of the government of the right to freedom of movement.

These are more than is likely and less than what is needed, but would be a start.

One thought on “DHS still evades review of no-fly orders

  1. Pingback: Links 18/6/2021: LibreOffice 7.2 Beta, Elementary OS 6.0 Beta 2, and Linux Mint 20.2 “Uma” Beta | Techrights

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